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A resolution shall be special resolution when the vote cast in favour of the resolution
by members who, vote in person or proxy are not less than three times the number
of the votes, if any, cast against the resolution by members.
The same provision has also been stated in the new Companies Act, 2013. However,
the old Act prescribed that, besides holding not less than 90% in value of the shares
whose transfer is involved, should not be less than 75% in number of the holders of
those shares. Section 235 of 2013 Act omits requirement of 75% in number. The
new act also provides for time-bound disbursal of purchase consideration received
by the transferor company to its shareholders i.e within 60 days from date of receipt
by the transferor company. This was not in the case of 1956 Act.
Hence, in the above case minority/dissenting shareholders have been provided with
an opportunity to approach the Court or NCLT as the case may be, by making an
application.
Hence, the demand for poll can be made by shareholder(s) holding 1/10th of the
total voting power or shares of paid up value of not less than Rs.5,00,000.
This is a new provision introduced by the new Companies Act, 2013. The class
action suit may be filed by the members or small investors against the directors or
auditors of a company. It states that the class-action may be taken by member(s) or
depositor(s) by filing an application before the NCLT against the directors or
auditors, if they are of the opinion that the management or conduct of the affairs of
the company are being conducted in a manner prejudicial to the interests of the
company or members or depositors.
The provision of the aforesaid section states that the requisite number of members
or depositors for filing this class-action application is:
-not less than one hundred members or depositors or not less than such percentage
of the total numbers or depositors as may be prescribed, whichever is less, or any
member or members holding not less than such percentage of the issued capital of
the company as may be prescribed or any depositor or depositors to whom the
company owes such percentage of total depositors of the company as may be
prescribed.
Further, the MCA has also issued in the first phase of draft Rules (Companies Act,
2013) with regards to the class action (Chapter XVI- Prevention of Oppression and
Mismanagement) by members or depositors of a company. It states the following
requisite members and/or depositors for filing the application.
a) Members- For the purpose of section 245, the number of members that may file
an application for class action shall be,
in the case of a company having share capital-: not less than one
hundred members of the company or not less than ten per cent. of the
total number of its members, whichever is less, or any member or
members singly or jointly holding not less than ten percent of the
issued share capital of the company;
b) Depositors- For the purposes of section 245, the number of depositors that may
file an application for class action shall be,
-
not less than one hundred depositors or not less than ten per cent. of the
total number of depositors, whichever is less or any depositor or depositors
singly or jointly holding not less than ten percent of the total value of
outstanding deposits of the company.